Tag: Rule 60(b)

Mississippi Court of Appeals Decisions of October 7, 2025

The Mississippi Court of Appeals handed down six opinions of substance yesterday. There is a divorce case, a timber case, a felony, a visitation/in loco parentis case, an heirship case, and a UM/UIM case with an interesting procedural question.

Hodge v. Hodge, 2024-CA-00745-COA (Civil – Domestic Relations)
Reversing the chancellor’s decision granting the ex-wife’s petition to set aside a final divorce degree arguing that she was forced to sign it under duress, holding that the chancellor did not abuse his discretion in finding the Rule 60(b)(4) motion timely, that section 93-5-2(5) did not apply because the complaint was not contested, that the chancellor erred by determining that the final divorce decree should be set aside in part because of the ex-husband’s claim splitting, and that there was not clear and convincing evidence that the ex-husband committed fraud.
(9-0: Lawrence for the Court; Barnes did not participate)

Payne Logging, LLC v. Smith, 2024-CA-00439-COA (Civil – Property Damage)
Affirming the chancellor’s award of monetary damages in a landowner’s claim against a logging company that removed timber off their property without permission while logging a neighbor’s property, holding that the chancery court did not err in applying the statutory guidelines in section 95-5-10.
(10-0: Westbrooks for the Court)

Hall v. State, 2024-KA-00364-COA (Criminal – Felony)
Affirming conviction of attempted capital murder, holding the the verdict was supported by sufficient evidence and that it was not against the overwhelming weight of the evidence.
(10-0: Wilson for the Court)

Edwards v. Johnson, 2023-CA-01271-COA (Civil – Domestic Relations)
Reversing the chancellor’s decision denying a petition to establish visitation by a non-parent, holding that the chancellor erred in applying the doctrine of unclean hands before determining the petitioner’s in loco parentis status and, if necessary, reaching the issue of whether visitation was in the child’s best interest.
(6-3: Carlton for the Court; Weddle concurred in part and dissented in part without writing; Wilson dissented; Emfinger dissented, joined in part by Wilson and Weddle; Lawrence did not participate)

In the Matter of Estate of Lewis: Curry v. Thomas, 2024-CA-00346-COA (Civil – Wills, Trusts & Estates)
Reversing the chancellor’s decision establishing paternity, holding that the one-year limitation for paternity is self-executing and thus cannot be waived and that the petitioner was barred from asserting an heirship claim because she did not attempt to establish paternity until almost eighteen years after her putative father’s death.
(7-3*: Barnes for the Court; McCarty concurred in part and in the result without writing; McDonald concurred in result only without writing; Westbrooks specially concurred, joined by McDonald, McCarty, and Lassitter St Pe’)

Thompson v. State Farm Fire and Casualty Company, 2024-CA-00393-COA (Civil – Insurance)
Affirming the trial court’s grant of a directed verdict in favor of a UM carrier, holding that the trial court did not err in granting a directed verdict for the UM carrier because there was no proof that the tortfeasor was an uninsured motorist and UM/UIM status was a question for the jury, that the UM carrier did not waive the argument that UM coverage was not applicable because the carrier did not have a duty to prove that the tortfeastor was an uninsured motorist, and that the trial court did not abuse its discretion in denying a new trial.
(7-3: Barnes for the Court; McDonald dissented without writing; McCarty dissented, joined by Westbrooks and McDonald)

Practice Point – McCarty’s dissent took issue with the directed verdict being granted during the damages phase of trial in front of the jury:

Other Orders

  • Davis v. State, 2023-KA-00884-COA (denying rehearing)
  • Quinn v. State, 2023-KA-01143-COA (denying rehearing)

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Double Issue: Mississippi Court of Appeals Decisions of July 29, 2025 and August 5, 2025

The Mississippi Court of Appeals handed down six opinions last week and nine opinions today. With fifteen total opinions, there is something for everybody. Among the summaries below is a lawsuit filed on behalf of a minor who did not make his school’s baseball team.

July 29, 2025

Soto v. Mississippi Export Railroad Company, 2024-CA-00638-COA consolidated with Loveless v. Mississippi Export Railroad Company, 2024-CA-00639-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the railroad in a car wreck case, holding that the railroad had no statutory or contractual duty to maintain traffic control devices while the road crossing the railroad was in the midst of an resurfacing project.
(9-1-0: St. Pe’ for the Court; McDonald dissented without writing)

James v. Memorial Hospital at Gulfport, 2024-CA-00459-COA (Civil – Med Mal)
Reversing summary judgment in a med mal case, holding that the plaintiffs’ response to the motion for summary judgment provided sufficient summary judgment proof including expert opinions and that the issue of whether a settled-defendant’s negligence was a superseding intervening act.
(10-0: Emfinger for the Court)

Strickland v. State, 2024-CP-00851-COA (Civil – PCR)
Reversing denial of PCR motion, holding that the indictment was void and remanding to set aside the guilty plea and for further consistent action.
(8-1-0: Lawrence for the Court; Carlton concurred in result only without writing; Emfinger did not participate)

Luster v. State, 2024-CA-00014-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not clearly earr in determining that proffered testimony was not newly discovered evidence.
(9-1-0: Westbrooks for the Court; McCarty concurred in part and in the result without writing)

West v. Gulf Relay, LLC, 2024-WC-00816-COA (Civil – Workers’ Comp)
Affirming the MWCC’s order, holding that substantial evidence supported the Commission’s finding that the claimant sustained an 80% industrial loss of use of his left upper extremity but apportioning that loss of use by 95%.
(9-1-: Carlton for the Court; McDonald concurred in part and in the result without writing)

Ramsey v. State, 2023-CP-00440-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding no merit to arguments that the guilty plea was involuntary and that counsel was ineffective.
(9-0: Barnes for the Court; St. Pe’ did not participate)

Other Orders

  • Jones v. State, 2022-KA-01124-COA (denying rehearing)
  • Ramsey v. State, 2023-CP-00440-COA (denying rehearing, substituting opinion)
  • 1st Step Sober Living LLC v. Cleveland, 2023-CA-00665-COA (denying rehearing)
  • Harris v. Casino Vicksburg, LLC, 2023-CA-00959-COA (denying rehearing)
  • Brooks v. State, 2023-KA-01081-COA (denying rehearing)
  • Jordan v. State, 2023-KA-01222-COA (denying rehearing)

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August 5, 2025

Polk v. State, 2024-KA-00591-COA (Criminal – Felony)
Affirming conviction of two counts of sexual battery of a minor under fourteen, holding that the trial court did not abuse its discretion in sustaining a relevancy objection during cross-exam of the victim or in sustaining objections to questions about the victim’s character trait for truthfulness, and that the trial court did not commit plain error violating the Confrontation Clause.
(8-2-0: Weddle for the Court; Barnes and Westbrooks concurred in part and in the judgment without writing)

In the Matter of the Conservatorship of Bennett: Bennett v. Bennett, 2023-CA-01385-COA (Civil – Other)
Affirming the chancery court’s finding of criminal contempt for violation of of order prohibiting appellant from visiting his mother in an elder-care facility and distributing mass mailings about his mother and her court proceedings, holding that the finding of contempt did not violate his rights to due process, free speech, or counsel.
(8-1-0: McDonald for the Court; Wilson concurred in part and in the result without writing; Weddle did not participate)

Green v. Presbyterian Christian School, Inc., 2023-CA-01278-COA (Civil – Torts)
Affirming motion to dismiss, holding that the parents who sued a school over their son not making the baseball team failed to state a claim under Rule 12(b)(6).
(7-2-1: Westbrooks for the Court; Wilson concurred in part and in the result without writing; Emfinger concurred in result only without writing; McCarty concurred in part and dissented in part without writing)

Johnson v. South Central Regional Medical Center, 2023-CA-00623-COA (Civil – Med Mal)
Affirming summary judgment dismissing a med mal case for failure to designate an expert witness, holding that the trial court did not err in granting the motion that was filed three years after the complaint was filed or in denying the plaintiff’s Rule 56(f) motion.
(10-0: Wilson for the Court)

Moyer v. Blades, 2023-CA-01180-COA (Civil – Personal Injury)
Affirming dismissal for failure to prosecute, holding that the trial court did not abuse its discretion in dismissing the lawsuit with prejudice under Rule 37 after the plaintiffs failed to respond to discovery for over a year and then failed to comply with a court order compelling them to respond.
(6-3-0: Wilson for the Court; McDonald and McCarty concurred in part and in the result without writing; Westbrooks concurred in result only without writing; Barnes did not participate)

Practice Point – I though this footnote was interesting from a civil defendant’s standpoint:

Goodloe v. State, 2023-KA-00960-COA (Criminal – Felony)
Affirming convictions of two counts of sexual batter and one count of fondling and sentencing as violent habitual offender, holding that allowing an expert to testify about the victims’ truthfulness was harmless error because the evidence of guilt sufficiently outweighed any harm caused by the admission and that the defendant did not receive ineffective assistance of counsel for failing to give an opening statement.
(7-2-0: Westbrooks and McDonald concurred in part and in the result without writing; Weddle did not participate)

Swims v. State, 2023-KA-01244-COA (Criminal – Felony)
Affirming conviction of second degree murder and possession of a firearm by a felon, holding that the trial court did not err in refusing the instruct the jury on the Weathersby rule, that the trial court did not abuse its discretion in allowing lay testimony about blood on the ground, and that though the trial court abused its discretion in admitting an autopsy report and in allowing testimony that simply repeated the autopsy report those errors were cumulative of admissible evidence and harmless.
(8-2: Wilson for the Court; Westbrooks concurred in part and dissented in part without writing; McDonald concurred in part and dissented in part, joined by McCarty in part)

Knox v. Alford, 2024-CA-00442-COA (Civil – Other)
Affirming the trial court’s order denying a Rule 60(b) motion to alter a judgment of a dismissal for want of prosecution, holding that the trial court did not err in finding that neither the plaintiff’s motion to leave his case on the docket filed in response to the clerk’s Rule 41 notice nor his request for a trial setting was a sufficient “action of record.”
(7-3: Barnes for the Court; Lawrence concurred in part and dissented in part, joined by Westbrooks and McDonald and joined in part by McCarty)

Brownlee v. State, 2024-CA-00585-COA (Civil – State Boards & Agencies)
Reversing and rendering the circuit court’s decision affirming MDOC’s denial of an ARP request for a parole-eligibility date, holding that MDOC lacked authority to disregard the sentencing court’s judgment and sentence even though the sentence was contrary to statute.
(6-1-3: Wilson for the Court; McDonald concurred in part and in the result without writing; Emfinger dissented, joined by Lawrence and Weddle)

Other Orders

  • Phinizee v. State, 2023-KA-01090-COA (denying rehearing)
  • Caffey v. Forrest Health, 2023-CA-01232-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of May 13 and May 20, 2025

The Mississippi Court of Appeals handed down six opinions last week and a hearty eleven today. There are some interesting cases in the mix and a summary of each is below.

May 13, 2025

May v. May, 2023-CA-01022-COA, consolidated with 2023-M-01401-COA (Civil – Domestic Relations)
Vacating the chancellor’s order of contempt for failure to pay child support but affirming his denial of the motion to recuse, holding that the chancery court did not have personal jurisdiction for purposes of a contempt ruling for want of service under Rule 81, but that although the chancellor erred in finding that the motion for recusal was untimely it was nevertheless within his discretion to deny it.
(9-1-0: Lawrence concurred in result only without writing)

Fortner v. IMS Engineers, Inc., 2023-CA-01170-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a company that had been engaged to oversee and manage road improvement projects until about ten months before a fatal accident occurred, holding that there was no evidence that the company owed a duty of care once its involvement ended and the City took over the management role.
(8-1-0: Wilson concurred in part and in the result without writing; Carlton did not participate)

Horne v. Dolgencorp LLC, 2024-CA-00376-COA (Civil – Personal Injury)
Affirming summary judgment in a trip-and-fall case after a customer tripped on merchandise in an aisle, holding that there was no evidence that the store had actual or constructive knowledge of the presence of the dangerous condition.
(8-2: Westbrooks and McDonald dissented without writing)

Shipley v. Shipley, 2023-CA-00814-COA (Civil – Custody)
Affirming judgment modifying the custody arrangement by giving the mother sole physical and legal custody, holding that the chancellor did not err in modifying physical and legal custody based the mother’s relocation to Oregon, that the chancellor’s did not err by failing to consider the totality of the circumstances, that the chancellor did not give undue weight to one Albright factor, and that the argument that the chancellor erred by not sua sponte appointing a GAL to investigate allegations of abuse was procedurally barred, and declining to address child support in after ruling that the chancellor did not err in its custody decision.
(7-3: Wilson dissented, joined by Carlton and Emfinger)

Magyar v. Shiers, 2023-CA-00682-COA (Torts – Other)
Affirming bench trial decision finding the defendant liable for malicious prosecution and awarding compensatory and punitive damages, holding that there was evidence to support each element of malicious prosecution where the defendant had filed charging affidavits against the plaintiffs alleging that they were intentionally damaging his property by allowing sewage from a leaking septic system to run into his property but the justice court dismissed the charges for lack of evidence.
(10-0)

Mueller Industries, Inc. v. Waits, 2023-WC-00494-COA (Civil – Workers’ Comp)
Reversing the Commission’s decision ordering a lump sum payment, holding that the information in the record did not permit the Court to review the Commission’s computations of TPD and remanding for the Commission to determine whether TPD was properly calculated and credited, determine whether the claimant received more than the maximum weekly benefit and whether the Employer/Carrier should receive a credit for overpayment, and ensure that the Employer/Carrier was not charged with penalties or interest after the date the Commission found that no further benefits were owed.
(8-2: Westbrooks concurred in part and dissented in part, joined by McDonald and joined in part by McCarty)

Other Orders

  • Mount v. State, 2023-KA-00807-COA (denying rehearing)
  • Begnaud v. Begnaud, 2023-CA-00822-COA (denying rehearing)
  • In the Matter of Estate of Tate: Garfield v. Tate, 2023-CA-01262-COA (denying rehearing)

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May 20, 2025

Mask v. Baggett, 2024-CA-00181-COA (Civil – Domestic Relations)
Affirming the chancellor’s decisions denying a motion for contempt and attorney’s fees in a divorce action for lack of proof, holding that the chancellor’s finding that neither party had sufficient proof to support motions for contempt and attorney’s fees was supported by the record and lack of record, that the appellant failed to show that the chancellor abused his discretion by denying the Rule 59 motion due to clear error or manifest injustice.
(10-0)

Bickes v. Swain, 2024-CA-00187-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the mother of the bride and the venue in a premises liability suit filed by a wedding guest who hurt his leg stepping off a porch at the venue, holding that the circuit court did not err in granting summary judgment without conducting a hearing that had been set and that summary judgment was proper because there was no evidence of a dangerous condition that could support liability regardless of whether the plaintiff was classified as a licensee or an invitee.
(7-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing; Weddle did not participate)

Page v. State, 2024-CP-00613-COA (Civil – Other)
Affirming the circuit court’s rejection of the plaintiff’s motion for discovery in the circuit court in which he was convicted of attacking a woman with a knife two decades ago, holding that the circuit court did not err in rejecting the claim as a standalone claim separate from a PCR petition though the circuit court incorrectly “denied” the motion instead of “dismissing” the motion for lack of personal jurisdiction.
(10-0)

Jones v. State, 2023-KA-01157-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the circuit court did not commit plain error in excluding evidence of a witness’s prior convictions because the weight of evidence of guilt was overwhelming, that the Miranda violation arguments were procedurally barred and did not merit reversal under the plain error doctrine.
(9-1-0: Wilson concurred in part and in the result without writing)

Pickett v. State, 2024-KA-00511-COA (Criminal – Felony)
Affirming conviction of one count of burglary of a dwelling with intent to commit a larceny, holding that the issue of the circuit court’s denial of the motions for directed verdict was procedurally barred and lacked merit because the evidence was sufficient and the verdict not against the overwhelming weight of the evidence and the circuit court did not err in denying the motions without making specific findings of fact.
(10-0)

Mortera v. Kona Villa Owners Association, Inc., 2023-CA-01297-COA (Civil – Property Damage)
Reversing summary judgment that was entered in favor of an HOA that declined to pursue a property damage claim on behalf of a condo unit owner, holding that based on the bylaws and insurance policy terms there was a genuine fact dispute over the HOA’s status of a fiduciary.
(9-0)

Parrott v. Frierson, 2023-SA-01245-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s dismissal of taxpayers’ petition appealing the Board of Tax Appeals’ order, holding that there was substantial evidence to support the chancellor’s finding that “yard sales” where the taxpayers purchased storage units and sold the contents were not isolated, casual, or occasional sales but sales made in the course of business and subject to sales tax, that the chancellor did not err in finding that the MDOR’s income tax assessment was prima facie correct, that the taxpayers did not overcome the presumption of correctness, and that the chancellor properly affirmed assessment of penalties and interest.
(10-0)

Forrest County General Hospital v. Knight, 2023-WC-01277-COA (Civil – Workers’ Comp)
Affirming the Commission’s order that affirmed the AJ’s order that the claimant suffered an 80% industrial loss of use of the right leg and reducing it to 60% due to apportionment but reversed the AJ’s finding of no loss of wage-earning capacity and awarded 15% LWEC for the low back injury, holding that under the deferential standard of review there was evidence to support the Commission’s decision.
(10-0)

Roach v. Roach, 2024-CA-00236-COA (Civil – Domestic Relations)
Affirming the chancery court’s denial of the ex-wife’s Rule 60(b) motion after the ex-husband was granted a divorce on the grounds of habitual cruel and inhumane treatment, holding that the chancery court did not err in finding that service of process by certified mail was proper and that the ex-wife failed to show exceptional circumstances related to her claim that her prior attorney was ineffective warranting relief under Rule 60(b).
(10-0)

Allen & Smith Insurance Agency, Inc. v. Merrill, 2023-CA-00468-COA (Civil – Contract)
Affirming summary judgment granted in favor of a former employee in a breach of contract claim alleging violations of a non-compete agreement, holding that the court had appellate jurisdiction even though the judgment did not include the language “no just reason for delay” and that the circuit court did not err in finding certain provisions ambiguous and striking them from the agreement.
(5-5: Carlton and Emfinger concurred in part and dissented in part; Wilson dissented, joined by Barnes, and McCarty and joined in party by Carlton and Emfinger)

NOTE – I hope this one goes up on cert. My impression is that the holding of the principal opinion would relax the Rule 54(b) standard as it has been enforced. In the meantime, I would not stop putting all of the Rule 54(b) magic language in your judgments.

Strong v. Acara Solutions, Inc., 2024-CA-00455-COA (Civil – Personal Injury)
Reversing summary judgment in favor of the defendant based on judicial estoppel after the plaintiff failed to disclose this personal injury claim in her bankruptcy proceedings, holding that the “acceptance” element of judicial estoppel was not met where the bankruptcy as dismissed without a discharge.
(8-2: Emfinger dissented, joined by Wilson)

Other Orders

  • Culbertson v. State, 2023-KA-00588-COA (denying rehearing)
  • Boone v. State, 2023-KA-00684-COA (denying rehearing)
  • Gibson v. State, 2023-KA-00704-COA (denying rehearing)
  • Grimes v. State, 2023-KA-01254-COA (denying rehearing)
  • Burnette v. State, 2023-CP-01330-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of February 25, 2025

The Mississippi Court of Appeals handed down eight opinions today and a bonus opinion Thursday of last week. There is a notably high reversal rate in these cases. The decision from last Thursday reversed a conviction of capital murder. The eight decisions handed down today cover personal injury, custody, divorce, felony convictions, wills and estates, and PCR with five of them at least reversing the trial court in part.

February 20, 2025

Roncali v. State, 2023-KA-00173-COA (Criminal – Felony)
Reversing conviction of capital murder and remanding for a new trial, holding that the evidence was sufficient to support the verdict but that trial court abused its discretion allowing a State’s expert to testify that the manner of death was homicide from a third person injecting methamphetamine into the victim.
Expert Testimony: 8-2 (Carlton dissented as to this issue, joined by Barnes, Lawrence, and St. Pe’)
Sufficiency of the evidence: 8-2 (Carlton concurred as to this issue, joined by Barnes, Lawrence, and St. Pe’; Westbrooks dissented as to this issue, joined by McDonald and joined in party by McCarty who joined the principal opinion)

February 25, 2025

In the Matter of Disbursement of Real Property Assets to Heir and/or The Sale of Real Property: Montgomery v. Whatley, 2022-CP-00992-COA (Civil – Wills, Trusts & Estates)
Reversing order permitting disbursement of real property one of the decedent’s children, holding that there was insufficient evidence in the record to support the chancellor’s finding that the decedent was the fee simple owner of the tract at issue and remanding to set aside the “Executrix’s Deed” and for further proceedings.
(7-2-0: Westbrooks and McDonald concurred in result only without writing; Lawrence did not participate)

Trehern v. Spivey, 2023-CA-01002-COA (Civil – Custody)
Reversing the chancellor’s custody modification order awarding the father legal and physical custody with no visitation awarded to the mother, holding that the chancellor did not find or identify any material change in circumstances, did not separately assess whether the change was adverse to the child’s welfare, and did not make on-the-record findings as to the Albright factors.
(10-0)

Crump v. State, 2023-CP-00795-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err in finding it the motion untimely, successive, and barred by res judicata.
(10-0)

Fairchild v. KS Ocean Springs Real Estate LLC, 2023-CA-00928-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the defendants in a premises liability case, holding that the trial court did not abuse its discretion in striking an affidavit supporting the plaintiff’s opposition as a discovery violation and did not err in finding that there was no evidence that the defendants had actual or constructive knowledge of a dangerous condition.
(9-1-0: Wilson concurred in part and in the result without writing)

Black v. Black, 2023-CA-01098-COA (Civil – Domestic Relations)
Affirming the chancellor’s order modifying custody in favor of the father, holding that the mother’s appeal of the modification judgment was not timely and therefore barred and that the trial court did not err in denying her relief from the judgment under Rule 60(b).
(10-0)

Practice Point – The Court noted that the Rule 60(b) motion filed more than ten days after the judgment does not toll the time for filing an appeal:

Colbert v. Colbert, 2022-CA-01293-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s decision denying the husband’s claim for divorce and granting the wife’s request for separate maintenance and child support, holding that the husband’s argument that the antenuptial agreement bars a grant of separate maintenance was procedurally barred for failure to present it to the trial court but reversing on the child support issue because the chancellor did not make the required findings of fact.
(9-0: St. Pe’ did not participate)

Star v. State, 2023-KA-00788-COA (Civil – Felony)
Affirming in part and reversing/rendering in part after the defendant was convicted of aggravated assault and being a felon in possession of a weapon, holding that the indictment and jury instruction for felon in possession of a weapon were deficient for failing to include the elements and reversing the conviction of felon in possession, but holding that the trial court did not err regarding the aggravated assault jury instruction.
(7-2-1: Wilson concurred in part and in the result without writing; Barnes concurred in result only without writing; Emfinger concurred in part and dissented in part)

Roberts v. Roberts, 2023-CA-00934-COA (Civil – Domestic Relations)
Reversing the chancellor’s equitable division of the marital estate and award of alimony, holding that the chancellor erred in valuing the husband’s business and other assets which required remand on both the equitable division and alimony decisions.
(9-0: Weddle did not participate)

Other Orders

  • Alexander v. Metropolitan Y.M.C.A., 20233-CP-01092-COA (denying rehearing)
  • Magee v. State, 2023-CP-00008-COA (denying rehearing)
  • Chung v. State, 2023-CA-00362-COA (denying rehearing)
  • Doukas v. Kiln Self Storage, 2023-WC-01195-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of August 27, 2024

The Mississippi Court of Appeals handed down eleven opinions today. The majority are PCR cases, but there are a few direct criminal appeals, a personal injury case, and a divorce case.

Magee v. State, 2023-CP-00008-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err by failing to appoint counsel to represent the petitioner at his evidentiary hearing, finding that the guilty pleas were knowing/intelligent/voluntary, or in denying the claim of ineffective assistance of counsel.
(9-0)

Haley v. State, 2023-CP-00918-COA (Civil – PCR)
Affirming dismissal of second PCR motion, holding that the circuit court did not err in finding that the motion was successive and time-barred.
(9-0)

Stacy v. Stacy, 2023-CA-00219-COA (Civil – Domestic)
Reversing the chancellor’s division of martial property and alimony award, holding that the chancellor erred by failing to address both the Ferguson factors and the Armstrong factors in the decision.
(9-0)

Harris v. State, 2023-KA-00460-COA (Criminal – Felony)
Affirming resentencing for conviction of depraved heart murder, holding that the trial court did not err in sentencing the defendant to life imprisonment and that the defendant had no liberty interest in parole.
(7-1-0: Westbrooks concurred in result only; Emfinger did not participate)

Alexander v. Metropolitan Y.M.C.A., 2022-CP-01092-COA (Civil – Personal Injury)
Affirming the trial court’s grant of summary judgment in a personal injury action arising from a swimming pool accident, holding that the trial court did not err in granting summary judgment where there was no evidence of breach or proximate cause.
(7-0: McDonald and Emfinger did not participate)

Easterling v. State, 2023-KA-00610-COA (Criminal – Felony)
Affirming conviction of possession of a controlled substance as a second or subsequent offender and habitual offender, holding that there were no grounds for reversal after reviewing counsel’s Lindsey brief and the record.
(9-0)

LaFleur v. State, 2022-KA-00500-COA, consolidated with 2022-IA-01244-COA (Criminal – Felony)
Affirming the trial court’s denial of the defendant’s motion to dismiss, holding that the trial court’s ruling granting a new trial on attempted murder did not constitute an acquittal so the Double Jeopardy Clause did not prohibit a second trial, and dismissing direct appeal because the defendant did not challenge his conviction of simple assault.

Pryer v. State, 2023-CP-00568-COA (Civil – PCR)
Reversing the trial court’s denial of a Rule 60(b)(6) motion to reconsider the denial of a PCR motion challenging the revocation of a suspended sentence, holding that it was error to deny the motion reconsider because MDOC’s petition for revocation cited only technical violations.
(9-0)

Hardy v. State, 2023-CP-00970-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the guilty plea was voluntary, that any Fourth Amendment or Sixth Amendment challenges were waived by the guilty plea.
(9-0)

Wallace v. State, 2023-KA-00071-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the trial court did not commit plain error by proceeding with voir dire in the defendant’s absence where the defendant knew about the trial date but had transportation issues, that there was no reversible error related to the prosecutor’s statements during closing, and that the verdict was not against the overwhelming weight of the evidence.
(7-1[0]-1[2]: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part, joined by McDonald.)

Siggers v. State, 2023-CP-00324-COA (Civil – Other)
Affirming the trial court’s summary denial of a pro se “Habeas Corpus” pleading that it treated as a PCR motion, holding that the trial court erred by treating the pleading as a PCR motion but affirming denial of the “Habeas Corpus” because the issue was moot once the final revocation hearing was held, but remanding the matter to consider a subsequent PCR motion.
(6-3: McDonald concurred in part and dissented in part, joined by Barnes and Westbrooks, joined in part by McCarty)

Other Orders

  • None

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Mississippi Court of Appeals Decisions of January 9, 2024

The Mississippi Court of Appeals handed down four opinions on Tuesday. Notably, not one of the decisions was a clean affirmance. There is a personal injury/MTCA decision, a riparian property damage case, a divorce decision, and an arbitration decision.

Mississippi Department of Rehabilitation Services v. Butler, 2022-CA-00176-COA (Civil – Personal Injury)
Affirming on direct appeal and reversing on cross-appeal in an MTCA car wreck case, holding that the circuit court did err after holding a bench trial and finding that the defendant-driver was in the course and scope of her employment and her negligence was the sole proximate cause of the accident, but holding that the circuit court erred in not awarding damages for the loss of a cell phone and repair of a wedding band and that the circuit court erred in denying the plaintiffs’ motion for additur on the loss-of-consortium claim.
(9-0: Emfinger did not participate)

Hegman v. Adcock, 2022-CA-00501-COA (Civil – Property Damage)
Affirming in part and reversing in part the circuit court’s judgment affirming the county court in a riparian rights case, holding that the circuit court did not err in affirming the denial of the plaintiff’s claim for injunctive relief and damages and the denial of the defendant’s Rule 52 motion, but reversing the circuit court’s decision affirming the court court’s finding the plaintiff liable on a tortious interference with business relations counterclaim and the $95,000 award on that counterclaim.
(8-2-0: Wilson and Emfinger concurred in part and in the result without writing)

Bolivar v. Bolivar, 2022-CA-00640-COA (Civil – Domestic Relations)
Vacating the chancery court’s judgment on a motion for contempt in “highly contentious divorce proceedings,” holding that the movant was required to have a new Rule 81 summons for her fourth contempt motion “regardless of the status of the litigation.”
(10-0)

Coleman v. Stan King Chevrolet, Inc., 2022-CA-00943-COA (Civil – Contract)
Reversing the circuit court’s dismissal of a motion to compel arbitration on the basis that the statute of limitations had run on the underlying claims, holding that where the defendants initially sought to compel arbitration but later obtained a default judgment on their counterclaim in the circuit court, the defendants’ rejection of the plaintiff’s attempt to proceed with arbitration justified relief under Rule 60(b)(6), holding that the circuit court erred in addressing the statute of limitations issue, and remanded for the matter to be restored to the active docket and stayed pending conclusion of arbitration proceedings.
(5-3-2: Lawrence and Smith concurred in part and in the result without writing; McCarty concurred in result only without writing; Greenlee dissented, joined by Enfinger)

NOTE – The proceedings in the circuit court were convoluted. It necessary to read the opinion to get a handle on what took place and the Court’s ruling.

Other Orders

Roberson v. State, 2021-CA-01182-COA (denying rehearing)

Carpenter v. State, 2022-KA-00398-COA (denying rehearing)

Davis v. State, 2022-KA-00573-COA (denying rehearing)

Boyington v. State, 2022-KA-00601-COA (denying rehearing)

Pickle v. State, 2022-CP-00929-COA (denying rehearing)

Hand Down Page

Mississippi Supreme Court Decisions of March 9, 2023

The Mississippi Supreme Court handed down three opinions today and not one is pedestrian. The first involves whether the loser in an insurance coverage dec action can come back after the mandate in the dec action and after being vindicated in the underlying liability action, to get relief under Rule 60(b) from the no-coverage judgment. In the next case, the Court weighs in on the Jackson mayor’s attempt to veto the city council’s inaction on the garbage collection contract. The third case is an appeal of an order of contempt and order denying recusal after the attorney failed to appear at trial after representing to the circuit court that he had Covid.

Scruggs v. Farmland Mut. Ins. Co., 2021-CA-00877-SCT (Civil – Insurance)
Affirming the circuit court’s denial of a Rule 60(b) motion, holding that the mandate rule deprived the circuit court of jurisdiction to entertain a Rule 60(b) motion twenty years after the Supreme Court’s opinion and mandate.
(9-0)

CONTEXT – The facts make this ruling a bit more interesting than the holding suggests. Many years go, the plaintiffs (Scruggses) lost an insurance coverage dec action in state court 20 years ago. Coverage had been denied because the Scruggses were accused of committing intentional acts by Monsanto. The Scruggses then prevailed in Monsanto’s federal lawsuit against them. I’ll let the Supremes take it from here:

Lumumba v. City Council of Jackson, 2022-CA-00855-SCT (Civil – State Boards and Agencies)
Affirming the special chancellor’s summary judgment in favor of the city council in this episode of Jackson’s garbage-collection saga, holding that the mayor did not have legal authority to veto a non-action or negative vote of the city counsel the city council’s non-ratification of the garbage collection contract presented by the mayor.
(9-0)

NOTE – The Court also held that the trial court did not err in allowing the city council to admit exhibits (public records that had been produced to the mayor) at the MSJ hearing that were not yet filed in the record of that case and that the chancellor did not err in denying the mayor’s motion for additional findings because the mayor could not both object to the court’s consideration of the city council’s exhibits while also asking the court to consider the mayor’s extrinsic evidence.

In Re: Ali M. Shamsiddeen, 2021-CA-01217-SCT (Civil – Other)
Affirming order of contempt and order denying recusal, holding that the trial court did not err in finding defense counsel in contempt for failing to appear at a pretrial conference (in person or virtually, after being given that opportunity) or at the trial because defense counsel said he had COVID but only provided a vague medical excuse and quarantine order but refused to provide medical documentation of the diagnosis.
(7-2: Kitchens dissented, joined by King)

NOTE – Here is the email the attorney sent to the court on the eve of trial.

Other Orders

In Re: Local Rules, 89-R-99015-SCT (granting motion to amend Tenth Chancery Court District’s local rules)

Shannon v. Shannon, 2020-CT-00847-SCT (dismissing previously-granted cert sua sponte)

Simmons v. Jackson County, 2020-CT-01014-SCT (denying cert)

Young v. Freese & Goss PLLC, 2020-CT-01280-SCT (denying cert)

Boyd v. State, 2021-CT-00066-SCT (denying cert)

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CT-00258-SCT (denying cert)

Hand Down List

Mississippi Supreme Court Decisions of June 9, 2022

The Mississippi Supreme Court handed down six opinions today. Topics include public project bidding, summary judgment in a property damage case, conversion by the owner of a collection agency, an appeal of a post summary judgment decision granting a Rule 60(b) motion based on fraud, a unanimous pro se PCR appeal win, and an election contest.

The Mississippi State Port Authority at Gulfport v. Eutaw Construction Company, Inc., 2020-IA-00881-SCT (Civil – State Boards and Agencies)
Reversing the circuit court’s decision that reversed the MSPA’s award of a project to the lowest bidder whose bid contained multiple errors and awarded the project to the second lowest bidder, holding that the lowest bidder’s errors were minor, the intended correct bid was evident on the face of the bid, and the corrected bid by the lowest bidder was a decrease in price.
(All justices concurred.)

Hardin v. Town of Leakesville, Mississippi, 2020-CA-01164-SCT (Civil – Property Damages/Summary Judgment/Proximate Cause)
Affirming summary judgment in favor of Leakesville, holding that the plaintiff failed to present sufficient evidence that water that had accumulated under her house was caused by an act or omission attributable to the town.
(All justices concurred.)

Practice Point – This opinion contains a helpful discussion of the exacting standard that applies when a plaintiff seeks to prove causation by circumstantial evidence:

McGee v. Comprehensive Radiology Services, PLLC, 2021-CA-00666-SCT (Civil – Torts/Conversion/Fraud)
Affirming the chancellor’s finding that the president of a collections agency was individually and personally liable for $785,549.71 that she directed her company to delay remitting to a radiology group while also billing for and receiving commissions for collecting that money, holding that while the tort of conversion cannot be used to recover a mere debt it can be used to recover identifiable money belonging to the plaintiff which is what occurred here.
(All justices concurred.)

Riverboat Corporation of Mississippi v. Davis, 2020-IA-01244-SCT (Civil – Personal Injury/Negligence/Rule 60(b))
The circuit court granted summary judgment in favor the casino in a personal injury case stemming from a fall from a casino chair due to the lack of evidence that the casino breached a duty. The plaintiff then filed a motion to reopen the case under Rule 60(b)(1) alleging that the defendant committed fraud in its 30(b)(6) deposition based upon information the plaintiff discovered in an unrelated case about another chair at the casino. The circuit court granted the motion to reopen based on fraud and the defendant petitioned for interloc which the Supreme Court granted. On appeal, the Supreme Court held that the trial court abused its discretion because the plaintiff “fell far short of satisfying all of the elements of fraud” and because this case did not present the requisite “exceptional circumstances” for relief under Rule 60(b).
(All justices concurred.)

Practice Point – This opinion has a helpful summary of what is required to prove fraud under Rule 60(b)(1):

Magee v. State, 2019-CT-01794-SCT (Civil – PCR/Involuntary Guilty Plea)
Reversing the circuit court’s denial of the plaintiff’s pro se PCR motion, holding that the circuit court granted an evidentiary hearing but failed to address the issue of whether the plaintiff’s guilty plead was involuntary because the plaintiff was affirmatively misinformed about the possibility of early release by his trial attorney and failed to allow the plaintiff to call witnesses or present evidence.
(Chief Justice Randolph did not participate.)

Meredith v. Clarksdale Democratic Executive Committee, 2021-EC-00305-SCT (Civil – Election Contest)
Affirming the trial court’s decision agreeing with the CDEC’s decision that a mayoral candidate resided at a lake house outside of the city limits rather than a funeral home apartment within the city limits, holding that the would-be candidate failed to prove by “absolute proof” that he met the residency requirement on or before the applicable deadline.
(Justice Coleman concurred in part and in the result) (“It is not in the court’s bailiwick to impose its judgment for that of the Legislature.”)

Other Orders

Hutto v. State, 2017-DR-01207-SCT (granting response to order granting motion for appointment of counsel for representation for successive petition for post-conviction relief filed by the Circuit Court of Hinds County)

Havard v. State, 2018-CA-01709-SCT (granting motion to file motion for attorney fees and expenses under seal)

Walker v. State, 2020-CT-00228-SCT (denying cert)

McLemore v. State, 2016-M-00364 (denying application for leave to proceed in the trial court with a warning against future frivolous filings)

Hand Down List

Summaries of the Mississippi Court of Appeals opinions of March 29, 2022

The Court of Appeals handed down one opinion today that is part MTCA decision on the open and obvious defense and part cautionary tale about the hazards of, and interplay among, Rules 54(b), 59(b), and 60(b) of the Mississippi Rules of Civil Procedure and Rule 3 of the Mississippi Rules of Appellate Procedure. Since I just had one opinion to wrestle with today I took a deeper dive into the timeline and the motions filed at the trial court level.

McGee v. Neel Schaffer Engineers and Planners Inc., 2020-CA-01277-COA (Civil – Wrongful Death)
Affirming in part the circuit court’s order granting summary judgment as to some defendants and dismissing the appeal as to the other defendants. The plaintiff’s decedent died of electrocution while moving a water pump on a State-aid culvert reinforcement project due a conflict with a utility line. The plaintiff filed suit against Pike County, Toles (the County’s State-aid engineer), Neel Schaffer (the engineer’s employer), and others not relevant to this appeal. The timeline is key to unpacking this opinion:

  • July 27, 2018: Summary judgment granted to Neel Schaffer’s because Toles was acting as a county employee and immune under the MTCA and that as a corollary Neel Schaffer, as Toles’s employer, was entitled to MTCA immunity. Final judgment entered as to the claims against Neel Schaffer using the magic words of Rule 54(b) (i.e. “final judgment” and “no just reason for delay”).
  • August 1, 2019: Summary judgment granted in favor of Toles on the claims against him in his individual capacity because it had previously determined Toles was entitled to MTCA immunity. Final judgment entered as to these claims.
  • June 18, 2020: The plaintiff filed a “motion to reconsider” the July 27, 2018, and August 1, 2019, summary judgments.
  • September 21, 2020: Plaintiff’s motion to reconsider was properly treated as a Rule 60(b) motion rather than a Rule 59(b) motion because it was filed more than ten days after the judgments had been entered, found to be untimely and meritless under Rule 60(b), and therefore denied.
  • October 28, 2020: Summary judgment granted as to the claims against Pike County and Toles in his official capacity, finding that they were entitled to immunity under the MTCA.
  • November 17, 2020: The plaintiff appealed from the summary judgments of July 27, 2018; August 1, 2019; and October 28, 2020, but not the September 21, 2020 denial of the motion to reconsider.
  • November 24, 2020: Neel Schaffer and Toles in his individual capacity filed a motion to dismiss the appeal as untimely.
  • November 25, 2020: The circuit court entered a final judgment as to the claims against Pike County and Toles in his official capacity.
  • December 4, 2020: Plaintiff filed an amended notice of appeal, again appealing only the summary judgments.
  • December 8, 2020: Neel Schaffer and Toles filed a second joint motion to dismiss the appeal as untimely.

The Court of Appeals first addressed the July 27, 2018, and the August 1, 2019, final judgments, and held that because the plaintiff did not file a motion to reconsider within ten days of either judgment or a notice of appeal within thirty days of either judgment, the plaintiff’s appeal of those judgments was untimely.

The Court of Appeals then addressed the dismissal of the claims against Pike County and Toles, holding that the circuit court did not err in finding that the dangerous condition was open and obvious, was not created by the government’s negligent maintenance or repair and it, and was not caused by Toles. The Court noted that the issue of whether a danger is open and obvious is usually a question for the trier of fact, but that there are cases where conditions are so clearly dangerous that the issue can be decided as a matter of law. The Court also held that neither Pike County nor Toles could be liable for causing a dangerous condition created by a third-party without notice and sufficient time to correct the dangerous condition:

(All judges concurred)

PRACTICE POINT: If you win summary judgment as to fewer than all claims/parties, request a 54(b) final judgment like the defendants did here. If the other side wins summary judgment as to fewer than all claims/parties, beware of a 54(b) final judgment that starts your appeal shot clock.

Other Orders

Wilson v. State, 2020-CP-00762-COA (denying motion for rehearing)
Hardin v. Hardin, 2020-CA-1314-COA (denying appellee’s motion for appellate attorney’s fees)
Jiles v. State, 2021-CP-34-COA (denying motion for rehearing)

Hand Down List